Last week the federal Department of Labor announced the oddly named H-1B One Workforce Grant Program, funded to the tune of $150 million. Its aim is
…to invest in training for middle- to high-skilled H-1B occupations within key sectors in the U.S. economy, including information technology and cyber security, advanced manufacturing and transportation, to upskill the present workforce and train a new generation of workers to grow the future workforce…
Through local public/private partnerships, grantees will deploy training to provide individuals in their communities with skills necessary to advance career pathways to employment in middle- to high-skilled H-1B occupations within key industry sectors. Training models will include a broad range of classroom and on-the-job training, customized training, incumbent worker training, Registered Apprenticeship Programs and Industry-Recognized Apprenticeship Programs.
It uses the language of 2020, but is a replay of the old industry lobbyist line, “We need H-1B workers now, to fill our tech labor shortage, but through training we’ll grow our own domestic workforce to alleviate the need for the visa program.” I say “old” line indeed, as it goes back to 1998, the year of the first industry push to expand the H-1B program.
The legislation enacted that year nearly doubled the visa cap, temporarily, and established a user fee, in which employers paid into a fund to retrain American workers. Two years later in 2000, a second increase was enacted; the industry convinced Congress and Bill Clinton that there was still a need for H-1Bs. Yet within months the Dot Com Boom burst, with massive layoffs in the tech world.
Putting aside the point that the industry almost certainly knew the implosion was coming when they argued for another increase in work visas, the point here is that the user-fee-funded training program remained. It turned out to be a failure, as some of us had predicted back in 1998. As I wrote in my 2003 article in the University of Michigan Journal of Law Reform (emphasis added),
…to address the skills issue Congress added another major provision in the new law, insisted on by Clinton and some leading Democrats. It established H-1B user fees which would fund retraining programs, with the goal of training American workers to fill jobs then being filled by H-1Bs. This provision too was doomed from the outset. In addition to the allegations made that employers were using the skills issue merely as a pretext to avoid hiring older workers—in which case retraining would be useless—the training funds ended up being used largely to train workers for technician jobs, which are not normally filled by H-1Bs anyway. Two years into the program, Sun Microsystems a major Silicon Valley firm that had been at the forefront of lobbying Congress to expand the H-1B program in 1998, stated that the training programs had not reduced—and, more tellingly, they could not reduce—its dependence on H-1Bs. Later, the Bush administration also concluded that the program had failed to achieve this, its stated goal, and proposed canceling it.
Last week’s announcement by the DoL has the same flavor as the one in 1998: Give workers modern skills through relatively short-term training programs, often with apprenticeship titles, in contrast to the fact that H-1B visas are for jobs requiring a bachelor’s degree, typically a master’s in the case of Silicon Valley. We again see an enthusiastic buy-in by industry, and will again see in a few years a Sun Micro-style denial in the industry that they never intended the 2020 program to reduce their dependence on H-1Bs.
Worst of all, of course, is the implied message that we have a tech labor shortage in the first place, which no study (other than industry-sponsored ones) has ever found. To be clear, yes, some non-tech Americans will benefit, but the program won’t reduce the income of immigration lawyers.
On that score, how has the Trump administration done in terms of H-1B? Recall that I had predicted in 2015, as Trump was just starting his run for office, that he would punish the “Infosyses,” the Indian-owned outsourcing firms, while rewarding the “Intels,” the mainstream firms that hire as H-1Bs foreign students from US university campuses. In fact, Trump has acted quite onsistently with that prediction.
Earlier this year, for example, Trump declared he was banning the entry of new H-1Bs to the US until at least December. The key word is “entry”; the ban does not apply to foreigners already here, i.e. the international students at US schools. So foreign students were effectively exempted from the ban.
This past week, the Trump administration announced that student visas would now be restricted to four years’ duration. For those pursuing a bachelor’s degree, this would prevent them for working in the US after graduation under the Optional Practical Training program, which is used as a holding pattern by foreign students while they wait for an H-1B visa. Since OPT runs as part of the F-1 student visa, they would apparently be out of luck. But the master’s students — the industry’s “sweet spot” — would have two to three years of OPT time. So again, the Intels will be accommodated.
The pending executive order on H-1B is also said to set a policy under which the visas are doled out in order of offered salary, highest wages first. I do support this, but again it clearly is aimed at protecting the Intels while “doing something” about the visa program.
So, the Trump administration should get no more than a C- report card on H-1B. Biden has indicated he would not reverse Trump’s H-1B policy, which is probably true. The Democrats are just as beholden to the Intels as the GOP is; after Clinton signed the 1998 legislation, he went on a fundraising tour of Silicon Valley.